Editors’ note: The blog is inviting constitutional lawyers to comment on the UK Government’s proposal to repeal and replace the Human Rights Act. We continue with a post by Dr Adam Tucker, 50th Anniversary Research Lecturer in Law at the University of York. You can read the other contributions in this series here. Posts on the topic are welcome.

I quite like the Human Rights Act; it is imperfect in many ways but I think that it gives the best answers that have been seriously on the table during my lifetime to a difficult set of political-moral questions, and that the reforms which currently seem to be being proposed would make our collective life substantially and (for some, vulnerable, people) irreversibly worse. And I am sceptical about parliamentary sovereignty; I think that there are constitutional limits on the legislation that Parliament can pass, and that Parliament has a limited but real ability to bind its successors as to the substance of future legislation. But here I want to develop a cautionary argument against combining these two positions in a particular way, a way which seems to have become increasingly popular, especially among constitutional lawyers, in recent years. That combination is the idea that the Human Rights Act has its own special, entrenched, status, and attempts at legislative reform are therefore likely to fail.

The Position

It is not a position which is carefully defended anywhere (as far as I know) but it still occupies a prominent place in constitutional law talk. Kate Malleson floated it in some detail in 2011 in her important article on ‘The Evolving Role of the Supreme Court’:

“If the HRA were to be abolished… it is hard to imagine that the Supreme Court Justices would simply put aside the case law and the human rights legal culture which the courts have developed over the last decade…Whether or not the Supreme Court would go so far as to refuse explicitly to recognise the validity of a statute repealing the HRA…would depend…At the very least, it is likely that the judges would …bring about a considerable degree of constitutional fudging so as retain the principles and decision-making processes, if not the form, of the HRA” (Public Law, Oct 2011, p. 763)

Mark Elliott flirted with it (but didn’t quite wholeheartedly endorse it) in his recent CLP lecture, in his exploration of the possibility that “the genie, now that it is out of the bottle, may return only reluctantly, if at all.” And it apparently has at least one other important and influential adherent. At a press briefing marking the Supreme Court’s 5th year, Lord Neuberger reportedly said that “if we did not have the Human Rights Act, the common law might develop in certain directions to accommodate a degree of change because the common law does change with the times. How it would change and in what respect is pure speculation.”

So, the idea that the HRA is entrenched particularly firmly is beginning to take hold – and sufficiently so that Graham Gee and Gregoire Webber (to whom I will return below) recently referred to it as “the legal orthodoxy that the HRA is an untouchable part of the UK’s constitutional arrangements”. At face value, though, this idea is nonsense. Surely, no-one thinks that section 10 can never be revisited, so that the executive has irreversibly acquired a sweeping delegated legislative power? Or even that section 2 is a fixed part of the constitution, so that the precise way in which our domestic legal system connects with Strasbourg jurisprudence can never again be changed? No, the position I am worried about is not a commitment to these nonsense ideas. It is an apparently more relaxed claim which attaches resilience neither to the whole of the Act, nor to any of its provisions in particular but to something less tangible instead. Malleson, for example, refers to the “principles and decision-making processes of the HRA” and “case law and the human rights legal culture”. Elliott refers to “both rights…and techniques” and “extant common law values”. But principles, decision-making processes, human rights legal culture, rights, techniques and values are the heart of the HRA, and any plausible reform would be (expressly, obviously) intended to reorient them. The principles, processes and culture (which Parliament instigated and stimulated in 1998) can only survive repeal if they are (if that 1998 Act is) in some way immune to express legislative reform. And that would be a wholly novel and undesirable direction for the constitution to turn.

Constitutional Novelty

There is no mainstream view of the UK constitution which would accommodate entrenchment of the HRA with the result that it could survive legislative reform in this way. Recent years have seen considerable attention paid to the question of how, and to what extent, Parliament can bind its successors. The academic literature on this theme is dominated by variants of the thesis that Parliament can bind itself as to the manner and form of future legislation (see for example, Mike Gordon and Jeffrey Goldsworthy). The case law, on the other hand, is dominated by the idea (but never its authoritative adoption) of Constitutional Statutes, which are immune from implied repeal (see Thoburn and HS2). I prefer (in forthcoming work on parliamentary sovereignty) to think in terms of a legislative power to make revocable commitments. These different approaches propose, each in their different way, constitutional foundations for the trend towards the recognition of resilient legislation. But none of them are capable of grounding the kind of resilience which the HRA would need to survive deliberate legislative reform. They ground ways of protecting statutes from some, but not all, repeal, and certainly not express repeal rooted in a majority government’s manifesto. Furthermore, these accounts all have a certain democratic pedigree – each makes democratic sense of the limits they seem to impose on parliament’s legislative power. In contrast, the novel entrenchment of the HRA has no such democratic pedigree. In fact, the argument is positively antidemocratic, both in its substance and in its consequences.

Antidemocratic Substance

The Human Rights Act is a complex bundle of answers to a set of difficult moral questions. Are there any human rights? If so, what rights are there? What do they require in concrete situations, and which institution gets to decide? And so on. These questions (and bundles of answers to them) are intensely controversial. In fact, they are the archetype of the kind of issue which Parliament exists to engage with and (provisionally, but reasonably stably) settle. There is, I realise, a certain tradition of answering them in ways which removes some controversy about rights from the normal democratic process. But that decision, the decision to remove some controversy from democratic politics, is one which must be taken on reasonable democratic grounds. The Human Rights Act was, in part, one such decision. It is antidemocratic to seek to freeze that particular decision and to remove it from future democratic (re)consideration. And, at their best, the criticisms of the HRA are legitimate stances in that important democratic debate. For example, David Cameron was sickened by the decision in R (F) v Home Secretary because (or so he told the House of Commons) he believes that it is the legislature and not the courts who should bear primary responsibility for deciding what our abstract commitment to respect for private and family life entails in the concrete circumstances of specifying the burden placed on sex offenders to register with the police. I think he is wrong, but this is plainly a legitimate position for him (and millions of other people) to take on a difficult question of institutional responsibility, and the established appropriate constitutional procedures for settling our disagreement are well established. It is a matter for Parliament.

Antidemocratic Consequences

Furthermore, the argument that the HRA is entrenched damages our constitutional culture by narrowing the field of democratic debate. And it does so in both directions. If the HRA is entrenched, then it follows that support for the Act is redundant. The invincible needs no protection. Supporters can, if they wish, just quietly enjoy the spectacle as the Conservative party insert a constitutionally impossible policy into their manifesto and then, once in government, waste (finite) political capital successfully pushing a pointless and doomed reform, only to see it eventually subverted in the courts. For every Adam Wagner, willing to passionately and publicly defend the Act, there may be many silent supporters, discouraged from involvement in a debate which – or so the apparent constitutional orthodoxy suggests – is pointless. Similarly, critics of the Act are essentially marginalised by the claim that the HRA is entrenched – as we saw in Gee and Webber’s recent contribution to this blog. If reform of the HRA is constitutionally impossible, then advocating reform is beyond the democratic pale. But this is a mistake. As Gee and Webber point out, the set of questions which the HRA answers are “questions about which people can and do reasonably disagree”. A thriving democratic culture would usher that disagreement into the public sphere rather than imply that it is unconstitutional.

There are many genuine legal problems which will make repeal and replacement of the HRA difficult. For example, it requires a careful bundling of answers to many related, but separate, difficult and controversial moral questions, it is connected to (several of) our international obligations, and tightly woven (in different ways, with different intensities) into the devolution settlements. But it is going too far to argue that it has a special, novel and undemocratic legal status with the capacity to frustrate democratic reform – even if that reform turns out to be clumsy, ill-constructed, or unsatisfying to supporters of the Act. The entrenchment argument is a form of special pleading by constitutional lawyers. We should join the substantive debate (on both sides!). Perhaps in particular we should lay the intellectual and conceptual foundations for successful engagement with the institutional questions the debate implicates. But we should not create or endorse novel and undemocratic arguments that suggest there is no need to engage at all.

Adam Tucker is 50th Anniversary Research Lecturer in Law at the University of York.

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One comment on “HRA Watch: Reform, Repeal, Replace? Adam Tucker: The Anti-Democratic Turn in the Defence of the Human Rights Act”

The Human Rights Act should not be regarded as somehow entrenched. Our constitution recognises only parliament being supreme and that supremacy will be asserted when the HRA is repealed and replaced by new legislation introducing the British (or maybe English – if Scotland and Northern Ireland get to keep HRA) Bill of Rights. The political will to do this should not be underestimated from a government made up mostly of individuals who are more concerned with State power than with individual rights.

Ministers have now stated in Parliament that they do not seek to leave the European Convention. Thus, judges will still be able to look at what Strasbourg is doing and cases decided in domestic courts whilst the HRA was in force may well achieve some form of persuasive force in the development of the common law should appropriate cases arise.